Mthembu and Others v South African Red Cross Society (J3012/12) [2014] ZALCJHB 407 (17 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: J 3012/12

In the matter between:

MBUSO MTHEMBU AND 15 OTHERS Applicants

and

THE SOUTH AFRICAN RED CROSS SOCIETY (an association incorporated under Section 21) Respondent

Heard: 10 October 2014

Judgment: 17 October 2014

Summary: Application for condonation- delay excessive- explanation not reasonable in light of extent of delay.

SONO, AJ

[1] This is an application to condone the late filling of the statement of case by the Applicants.

[2] The period of delay is in dispute. On the Applicant’ version, the period of delay is 9 (nine) months, whereas on the Respondent’s version, the period of delay is 13 (thirteen) months.

[3] The Applicants have upfront conceded that on either their, or on the Respondent’s version, the period of delay occasioned in this matter is excessive. The Applicants however contend that the explanation for the delay is not unreasonable in the circumstances of the matter.

[4] It is in any event crucial for this Court to determine the period of delay because the longer the delay, the more the need for the

Applicants to have a good explanation. [1]

[5] In terms of section 191 (5) (b) (ii) of the Labour Relations Act[2] (“the LRA”) an employee may refer a dispute to this Court if the employee has alleged that the reason for dismissal is based on the employer’s operational requirements.

[6] Section 191 (11) (a) of the LRA enjoins the employee to refer the dispute for dismissal based on the operational requirements of the employer for adjudication before this Court within 90 (ninety) days after the Council or the Commission has certified that the dispute remains unresolved.

[7] The Applicants contend that the dispute was referred to the Labour Court on 29 November 2013 and that at the same time they served on the Respondent their statement of case by faxing it to the number which appears in the service affidavit.

[8] The Respondent on the other hand denies that the fax number to which the Applicants’ statement of case was faxed as it appears in the service affidavit belongs to it or its current Attorneys, or the previous Attorneys who represented the Respondent during the liquidation proceedings.

[9] Needless to say, the Applicant’s papers did not reach the Respondent on or about 29 November 2013.

[10] The certificate of outcome by the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) was issued on 25 October 2012. The dispute remained unresolved. Therefore, the dispute ought to have been referred to this Court on or by 23 January 2013.

[11] Further, in terms of the rules of this Court, the Applicants must satisfy the Court that the statement of case has been served on the Respondent prior to filing same in Court. For the reasons stated above, I accept the statement of case was not served on the Respondent until 06February 2014. The referral was thus defective.

[12] For all intents and purposes, service was only effected on the Respondent on 06 February 2014 when the documents were faxed to it this time. It was only at this stage that the defect in the referral of the Applicants’ dispute was rectified.

[13] Accordingly, I accept that the Applicant’s statement of case is 13 months late.

[14] As stated above, the Applicants have conceded, correctly so, that the delay is inordinate.

[15] I now turn to deal with the explanation for the delay.

[16] In essence, the Applicant’s explanation is that they were pursuing other remedies against the Respondent. To this end, the Applicants say that amongst other steps that they took, was to make an application in the High Court for the liquidation of the Respondent on the basis that the Respondent had failed to pay the Applicant’s statutory benefits. This step was based on the advice of the Applicants’ legal representatives having considered all options and decided on what was best for the Applicants both “on law and financially”. The option of approaching this Court was also considered but discarded due to the fact that the Respondent had already mentioned its inability to fulfil some of its financial obligations.

[17] The debts to the Applicants were nonetheless paid on 25 April 2013 following a meeting with the Respondent on 17 April 2013.

[18] After the payments were made, the Applicants once again had to decide whether to proceed with the High Court application to liquidate the Respondent or approach this Court. The Applicants apparently opted to approach the High Court instead but later on or around 01 July 2013 changed their minds and decided to rather approach this Court.

[19] It took a period of almost 2 months from 01 July 2013 to some date in October 2013 for the Applicants’ attorneys of record to brief counsel to settle the papers to this Court and another month or more, for counsel to settle the papers which were ultimately filed in Court on 29 November 2013.

[20] It was further contended by Ms Van den Bergh on behalf of the Applicants that the Applicants had engaged with the Respondent between the period July 2013 and the time when they decided to refer their dispute to this Court and because of these interactions with the Respondent, the latter is aware of the dispute. I am not certain what value this proposition adds to the application. In my view, it is irrelevant unless in addition, the Applicants would say that there was an agreement between them and the Respondent not to refer the dispute to this Court in order to give the parties an opportunity to settle the matter between them. Even this argument would fail as the Applicants are compelled by statute to refer the dispute within 90 days. The parties cannot

by agreement amend the statute.

[21] It is apparent from the above that the Applicants had made a deliberate election, as contended by the Respondent, to pursue other remedies elsewhere and not refer their alleged dispute to this Court.

[22] There was no suggestion either in the papers or in argument before Court that the Applicants were unaware of their right to refer the alleged dispute to this Court. The Applicants consciously elected what was the most effective recourse both on law and financially at the time and decided to rather pursue that other remedy. The question however remains whether the Applicants’ explanation is reasonable in the circumstances.

[23] I have to pause and mention here that, the Applicants have always been legally represented. The decision as to which cause of action was the best for the Applicants to pursue was made on the advice of the Applicants’ legal representatives.

[24] I now turn to briefly deal with the reasonableness of the reasons proffered by the Applicant.

[25] As stated above, this is not a case where the Applicants were unaware that they could refer their case to this Court. Even then, it would not be an excuse. To the contrary, however, the Applicants indicate that they made an election, might I add, an informed election it would appear, to seek recourse elsewhere.

[26] In my view, the Applicants made their bed and they must therefore lie in it. Their explanation is unreasonable as there is no indication why they could not simultaneously, as they were pursuing the High Court matter also approach this Court for a remedy based on the alleged unfair dismissal. In fact, the Applicants sought an order for alleged unfair dismissal from the High Court.

[27] From the above, I find that the explanation for the delay is unreasonable.

[28] Without a reasonable and acceptable explanation for the deal, the prospects of success are immaterial. In NUM v Council for Mineral Technology at 211 F-H, Myburgh JP (as he then was) had this to say: [3]

“…….The approach is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are inter-related; they are not individually decisive.

What is needed is an objective conspectus of all the facts..A slight delay and a good example may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused…[4]

[29] For this reason, the application for condonation must fail.

[30] In addition, in order to grant condonation, the entire period of delay must be explained. Given the Applicants’ method of calculation being from 29 November 2012 to 23 January 2013 when they filed the statement of case, the period between 29 November 2012 and February 2013 when the statement of case was actually served on the Respondent, remains unexplained.

[31] Further, it is an established principle that an application for condonation must be brought as soon as a party becomes aware of the need to do so. .Miss Reddy for the Respondent referred me to the judgment in SABC Limited V CCMA and Others [5]where the above principle was applied by court. I am bound by the decision of the Labour Appeal Court. The Applicant became aware of the need to make an application for condonation in March 2014 when the Respondent in its response to the statement of case raised an in limine point relating to the lateness of the referral. The Applicants only filed the application for condonation on 15 May 2014, a period of almost two months after becoming aware of the need to do so.

[32] For all the above reasons the application for condonation must fail.

[33] I however proceed to consider other requirements for the application for condonation.

[34] I now turn to deal with the prospects of success.

[35] In essence the Applicants in their papers allege that the Respondent has failed to comply with the provisions of Section 189 of the as amended in that the Respondent did not consult with them prior to taking the decision to retrench them.

[36] The Respondent in its response to the statement of case placed this assertion by the Applicants in dispute.

[37] Miss Van Den Bergh argued that because there is a dispute of fact as to whether or not there was compliance with Section 189 of the LRA, the condonation application must be granted so that the trial court can decide the matter in due course. Miss Reddy on the other hand, argued that the Applicants had failed to deal with the Respondent’s assertion by filing additional papers. Therefore, argued Ms Reddy, the Respondent’s version must be accepted based on the authority in Plascon-Evans Paints v Van Riebeeck Paints[6]

[38] Indeed, the Applicants did not file any further papers to deal with the allegations of the Respondent. Thus, the Respondent’s version must stand.

[39] In the absence of a good explanation for the excessive delay occasioned in this matter, the Applicants’ prospects of success in the main case must be good. The court in NUM v Council for Mineral Technology [7]supra (held that “the importance of the issue and strong prospects of success may tend to compensate for a long delay”.

[40] I am not persuaded that the Applicants’ prospects of success are good in the face of the Respondent’s response to the statement of case. In my view, the Applicants prospects of success are materially wanting or at best for the Applicant, evenly spread. However, for the application for condonation where the period of delay is excessive and the explanation thereof is poor, to succeed, the Applicant must have strong prospects of success.

[41] Ms Van Den Bergh also conceded that both parties will suffer prejudice as a result of the delay.

[42] This Court is satisfied that the delay occasioned in referring the Applicant’s dispute to this Court is excessive, the explanation thereof is unreasonable and unacceptable, and the prospects of success are not strong. As stated above, the Applicants conceded that both parties will suffer prejudice. The Respondent in particular argued that after a period of 13 months and having undergone retrenchment, the Respondent will among other factors, find it difficult to secure witness to testify on its behalf during trial. This inconvenience is not insignificant.

[43] In the premises therefore, the application for condonation must fail.

[44] With regard to the issue of costs, this Court has a discretion whether to grant costs or not, which discretion must indeed be exercised judicially upon consideration of all facts.

[45] The Applicant’s were retrenched due to no fault of theirs. That is the nature of a retrenchment. This Court does not wish to add to the financial burden of the Applicants with a costs order. The Applicant’s have as a matter of law, approached this Court for relief, even if they failed to do so timeously.

ORDER

[46] In the premises therefore I make the following order:

46.1 Application is dismissed.

46.2 No order as to costs

__________________________

B Sono

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant : Advocate J van den Bergh

Instructed by : Stegmanns Inc. Attorneys

For the Respondent : V Reddy of Norton Rose Fulbright Attorneys

[1] See in this regard: Melanie v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) where the Court held as follows: “In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interests in finality must not be overlooked.”

[2] Act 66 of 1995.

[3] (1999) 3 BLLR 209 (LAC)

[4] Court’s emphasis.

[5] 2010 (3) BLLR 251 (LAC).

[6] 1984 (3) 623 (A).

[7] 1999) 3 BLLR 209 (LAC)